from the and-there's-that... dept

Late last week, there was a fascinating series of events in one key Righthaven lawsuit, which might lead to the collapse of most, if not all, of Righthaven's cases. If you don't recall, Righthaven is the somewhat sketchy company that was funded by Stephens Media (the publisher of the Las Vegas Review-Journal) for the purpose of effectively shaking down anyone who posted LVRJ content to the web. The way it supposedly worked was that Righthaven would scour the web, find copies of LVRJ content, and then Stephens would assign the copyright to Righthaven, so that Righthaven could sue on its own behalf. Righthaven always sued first. It never issued takedowns or made any indication that it was going to sue a particular site. Many sites settled, because Righthaven would accept a few thousand dollars as a settlement and that's cheaper than hiring a lawyer to fight the case. There were initially some questions over whether or not it was legal for Righthaven to sue when it obtained the copyright after the alleged infringement took place, but some of the early rulings in the court cases said that it was fine.

A couple of very interesting things quickly happened. First, Righthaven and Stephens Media tried to drop the case saying it no longer wanted to sue Democratic Underground. It seemed clear that it didn't want to deal with what was coming next. Thankfully, the case is still ongoing, and recently news started spreading that the EFF, in the process of discovery, had come across a piece of evidence that would blow Righthaven out of the water... but that it couldn't reveal that evidence because it was under seal.

Well... no more. First up, the judge in the case unsealed the EFF's filing with a blistering critique against Righthaven. You really need to read the whole thing below, because it misses no opportunity to slam Righthaven, especially for Righthaven's attacks on the EFF lawyers, and a claim that the EFF was underhanded in how it filed the documents in question, because certain aspects weren't standard, but the Court points out that their only complaint appears to be that they didn't read the filing in question, and are now blaming others for that:

Righthaven and Stephens Media accuse Defendants of being underhanded by proposing a 14-day response period in the Court's Order permitting the filing under seal. There was nothing underhanded done at all. The proposed order was filed. The Court's Order also served on Righthaven and Stephens Media. Unless they confess to not reading, or ignoring, the Court's Order, their lament is not persuasive.

Righthaven and Stephens Media also accuse Defendants' counsel (who, they make a point of reminding the Court, are from out-of-town) of disingenuous gamemanship. They demand the Court issue an Order to Show Cause why Defendants should not be held in contempt for violating the Protective Order. It is this demand that is disingenuous. This Court entered the Protective Order. This Court certainly has the authority to modify its procedures as it sees fit, which it did in establishing provision for the filing of Supplemental Memorandum, because of the lateness of the disclosure by Righthaven and Stephens Media, and the potential imminent decision on the Motion to Dismiss and the Motion for Summary Judgment.

It appears the court was just warming up, because then the judge comes out with the following, beautiful, condemnation of Righthaven's legal filing practice:

The use of phrases, in the Motion to Strike, such as "underhanded," "a ruse," "blatantly ignored," "brazen attempt," "fumbling attempt," "purposefully muddle," and "Defendants' complaint reeks of hypocrisy," is a very unprofessional attempt to attack counsel rather than address the issues. There is an old adage in the law that, if the facts are on your side, you pound the facts. If the law is on your side, you pound the law. If neither the facts nor the law is on your side, you pound the table. It appears there is a lot of table pounding going on here.

Later, the court "confesses" that initially it was sympathetic to Righthaven's request that the new evidence not be unsealed, but then changed its mind in part due to the actions and statements of Righthaven. It really is a fantastic read, which you can see embedded below.

Of course, that's only half of this story. What was then unsealed in the document is even more damaging and may undermine most, if not all, of Righthaven's cases. However, this post is long enough, and that's a separate part of the story, so stay tuned for the very next post, in which we cover what's in the now unsealed document...

Reader Comments

"There is an old adage in the law that, if the facts are on your side, you pound the facts. If the law is on your side, you pound the law. If neither the facts nor the law is on your side, you pound the table."

Of course, that's only half of this story. What was then unsealed in the document is even more damaging and may undermine most, if not all, of Righthaven's cases. However, this post is long enough, and that's a separate part of the story, so stay tuned for the very next post, in which we cover what's in the now unsealed document...

A little hard to unpack the legalese...

Mike,

First off, thank you for your exhaustive coverage of the Righthaven debacle. I have been following it closely, and I appreciate your viewpoint on the situation.

I do have one niggling critique of this article, which is that your coverage doesn't help me to make sense of what's going on in this filing. I THINK I understand it, but one of the reasons I come to Techdirt is to get an outside check on my own comprehension. Specifically, the sentence beginning with "You really need to read the whole thing below..." is where I would hope to get a layman's read on what this judge's determination actually means in terms of what's going on with all of the filings and counter-filings in this case. But that sentence is a whopping run on that doesn't really break down the legal maneuvering for a non-expert. (Why yes, I WAS an English major in college...how did you guess?!)

From what I can gather, Righthaven is objecting to the EFF's request (which the judge had approved) that Righthaven respond within 14 days with a justification of why some certain documents should remain sealed. Righthaven did not reply within that timeframe (or even within an additional 7 days after) and the judge is faulting them for that. Righthaven cries foul, saying the 14 day stipulation is "underhanded," and the judge shoots back that it's not underhanded at all and that Righthaven shouldn't even bother to contest this, unless they just didn't read or ignored the judge's order. Do I have the gist of it?

Again, thanks for your excellent coverage of this case. I'm assuming that this post went up quickly due to its importance, and I'm willing to grant that maybe I should just shut up and wait for a more considered breakdown of what this all means....

Confusion

find copies of LVRJ content, and then Stephens would assign the copyright to Righthaven, so that Righthaven could sue on its own behalf

This is where I find the entire patent/copyright is necessary to protect the inventor/creator argument a load of bull. Ownership shouldn't be able to change hands. Licensing would be more sensible...then you wouldn't get so many patent hoarding and litigating companies "promoting the progress".

Re: A little hard to unpack the legalese...

Re: A little hard to unpack the legalese...

From what I can tell, I think you've got it as well. I've read some of the coverage elsewhere, and this seems consistent. I think we were being trusted to read the filing ourselves, although your request for layman's explanations is probably more than reasonable.

The issue, I think, is that in the realm of IP law, layman's terms don't do the idiocy justice in the same manner as this judge did....

Re: Re: A little hard to unpack the legalese...

If the facts are on your side, you pound the facts. If the law is on your side, you pound the law. If neither the facts nor the law is on your side, you pound the table. And if the jury isn't on your side, you go to pound-me-in-the-ass prison.

Re: Confusion

I donít think a regime that only allowed licensing would help here. If Righthaven couldnít buy the material it needed for the suit, it would simply get an exclusive license to it, and that would grant it interests in the material that are similar enough to still continue its "reign of terror"

Re: Re: A little hard to unpack the legalese...

I get the feeling the judge wanted to add "and if the plaintiff is acting like an ass, you pound them in writing."

I must admit, being from Australia and not really knowing what the 9th district etc all mean relative to one another can make it hard to follow as well. Whilst I understand and appreciate Mike's exhortations to read the entire thing, I'd have definitely benefited from a layman's perspective. That said, my take is the same as above.